Roger Martella is a partner in the Environmental Practice Group at Sidley Austin LLP. He recently rejoined Sidley Austin LLP after serving as the General Counsel of the United States Environmental Protection Agency, concluding 10 years of litigating and handling complex environmental and natural resource matters at the Department of Justice and EPA.
Mr. Martella’s practice focuses on three primary areas. First, Mr. Martella advises companies on developing strategic approaches to achieve their goals in light of rapidly developing demands to address climate change, promote sustainability, and utilize clean energy. Second, Mr. Martella handles a broad range of environmental and natural resource litigation and mediation. Third, Mr. Martella advises multinational companies on compliance with environmental laws in the United States, China, the European Union, and other nations.
Mr. Martella was unanimously confirmed by the United States Senate as EPA General Counsel. In that role, Mr. Martella served as EPA’s chief legal advisor supervising an office of 350 attorneys and staff in Washington and 10 regional offices. At EPA, Mr. Martella served as Agency counsel on six Supreme Court decisions, including Massachusetts v. EPA (climate change); Defenders of Wildlife v. EPA (finding no Endangered Species Act duty to consult when approving state water program); EPA v. Rapanos and Maine v. S.D. Warren (landmark decisions addressing federal jurisdiction over waters of the United States); Environmental Defense v. Duke Energy (addressing Clean Air Act enforcement against powerplants); and U.S. v. Atlantic Research Corp. (the Court’s most recent decision regarding CERCLA).
In particular, Mr. Martella led the team responsible for developing for the first time under the Clean Air Act the federal government’s climate change legal framework and options in response to the landmark Supreme Court decision Massachusetts v. EPA, which held greenhouse gases to be air pollutants under the Clean Air Act. His efforts included developing a full range of legal options for decision makers related to greenhouse gas regulation, alternative and renewable fuels, the development of regulatory carbon sequestration controls, and the intersection of climate change and natural resource issues including the National Environmental Policy Act and the Endangered Species Act. Recognized for his knowledge on legal approaches to addressing climate change, Mr. Martella focuses specifically on dissecting the extraordinarily complex and interrelated ramifications of climate change on numerous provisions of the Clean Air Act relating to mobile and stationary sources, as well as other laws, such as the ESA and NEPA. Mr. Martella’s experience in this area enables him to work to forecast for clients the likelihood of upcoming regulations and controls in the area of climate change, clean energy, and sustainability, and to develop strategic approaches to be best prepared for such controls. Mr. Martella also focuses on international climate issues, working with Chinese institutes on climate and clean energy issues and advocating for conformity between United States climate rules with the European Union. Since the April 2007 Massachusetts decision, Mr. Martella has been invited to address climate change regulation more than twenty-five times in the United States and abroad.
In addition to climate change responsibilities, Mr. Martella focuses on the challenges in adapting existing and frequently outdated environmental law tools toward new and complex environmental challenges of national and international sustainability, including the increasing demands on industry to promote environmentally sustainable development protecting air, water, land, and human health.
Recognizing deficiencies in the China environmental law framework and the challenges for multinational organizations in understanding the laws on the books, Mr. Martella created the China Environmental Law Initiative in 2007. As part of the initiative, Mr. Martella created the only known website devoted to China environmental laws and organized with the State Environmental Protection Agency (now the Ministry of Environmental Protection) two separate symposia in China. Mr. Martella has served as a visiting professor at the Environmental Law Institute of Wuhan University and the State Environmental Protection Agency, and at Tsinghua University, working with academics, officials and students on developing environmental law frameworks for China. Mr. Martella has testified as an expert on this issue before the United States Congress, worked with numerous government officials at the national and provincial level in China, and has lectured with academics and students at leading universities and think tanks in both nations.
Prior to joining EPA, Mr. Martella most recently served as the Principal Counsel for Complex Litigation at the Justice Department’s Natural Resources Section, where he focused on defending federal decisions relating to public lands, national forests, minerals, federal and tribal water rights and allocations, endangered species, NEPA, and Native American property and reservations. During nearly eight years at the Department of Justice, Mr. Martella maintained an unbroken record of successfully litigating every case he brought to court. His first chair trial responsibility included a 12 week jury trial that returned a $36.9 million verdict, a seven week bench trial that resulted in a $247.9 million judgment, an unbroken record of successfully defending against numerous emergency injunctions brought against timber and mining projects, and successfully defending the Secretary of Interior from a contempt motion at trial. Mr. Martella’s responsibilities in the Natural Resources and the Indian Resources Sections related to federal land use decisions and policy; defense of federal statutes, regulations, and agency action under the APA, ESA, NEPA, and other statutes; competing assertions of jurisdiction and land use control among various government entities; federal programs relating to natural, cultural, wildlife, and marine resources; pollution control issues under Clean Air Act, Clean Water Act, CERCLA, RCRA, TSCA, FIFRA, and EPCRA; and issues related to water, hunting, fishing, and treaty rights. Mr. Martella received among the highest honors at the Department of Justice including the John Marshall Award and the Assistant Attorney General’s Excellence Award.
Mr. Martella graduated from Vanderbilt Law School, where he was Editor in Chief of the Vanderbilt Law Review, and Cornell University, where he studied environmental science. Following law school, he clerked for the Hon. David M. Ebel of the Tenth Circuit Court of Appeals.
Mr. Martella, elected at large to the Warrenton, VA, Town Council, devotes significant effort to public service in his community and was recognized in 2006 as Citizen of the Year by the Fauquier County Board of Supervisors for his public service and volunteerism efforts.
Areas of Focus
Admissions & Certifications
David M. Ebel, U.S. Court of Appeals, 10th Circuit
The White House Council on Environmental Quality has issued guidance to provide direction for federal agencies in addressing the effects of greenhouse gas emissions and climate change as they satisfy their duties. Many projects may now require federal permits, approvals or funding from federal agencies and thereby require the preparation of an environmental impact statement or environmental assessment.
Congress recently passed the landmark Frank R Lautenberg Chemical Safety for the 21st Century Act, the first time the Toxic Substances Control Act has been substantively amended since its enactment in 1976. It is important that all companies that manufacture, use, process, import, export or sell products containing chemicals become familiar with the new regulatory regime.
The Federal Acquisition Regulatory Council recently published a proposed rule in the Federal Register that would require federal contractors with awards cumulatively exceeding a given threshold to indicate whether they publicly disclose information on their greenhouse gas emissions. The rule would enable the federal government to consider greenhouse gas emissions when deciding what items to procure and which contractors to use.
Environmental groups recently filed suit seeking an order compelling the Environmental Protection Agency to issue new rules regulating oil and gas wastes under the Resource Conservation and Recovery Act. Meanwhile, the Pennsylvania House Environmental Resources and Energy Committee has approved a resolution to block new rules for hydraulically fractured and conventionally developed oil and gas wells.
Appellants, the United States and several non-governmental organisations recently filed opening briefs in their interlocutory appeal to the 10th Circuit of a preliminary injunction blocking the US Bureau of Land Management (BLM) rule governing hydraulic fracturing on federal and tribal lands. Appellants argued that the lower court based the injunction on an incorrect reading of federal law, asserting that the BLM is authorised to regulate the development of publicly held resources using hydraulic fracturing.
The Bureau of Land Management (BLM) recently announced that it intends to cancel 25 oil and gas leases in the White River National Forest. Although the BLM's draft environmental impact statement had recommended cancelling only 18 leases, the BLM stated that its preliminary preferred alternative was now to cancel all of the leases. The US Forest Service's recent oil and gas leasing plan would likewise ban oil and gas drilling in the White River National Forest.
Whether the issue was climate change, air quality standards or water jurisdiction, the Environmental Protection Agency's landmark rulemakings dominated the environmental headlines in 2015. This update highlights the decisions, rulemakings and policy determinations that are likely to have precedential effect and may represent long-term trends affecting the environment and regulated entities during 2016 and beyond.
An ad hoc panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently issued a draft report raising concerns over some of the conclusions in the EPA's multi-year study that reviewed the potential impacts of hydraulic fracturing on drinking water supplies. In particular, the panel expressed concern with the EPA's conclusion that there is no evidence of "widespread, systematic impacts on drinking water".
Members of the Hydraulic Fracturing Research Advisory Panel of the Environmental Protection Agency's (EPA) Science Advisory Board recently continued their review of the EPA's June 2015 draft report assessing the potential affects of hydraulic fracturing for oil and gas on drinking water resources. The panel is scheduled to send its draft review to the EPA early next year.
The Environmental Protection Agency (EPA) has released a final rule to reduce the level of the national ambient air quality standard (NAAQS) for ozone. NAAQSs must be established at levels that are requisite to protect public health and welfare with an adequate margin of safety. The Clean Air Act requires the EPA to review – and if necessary revise – NAAQSs every five years.
The Environmental Protection Agency recently proposed three significant regulatory actions extending its controls over the energy sector by expanding regulations over the oil and gas industry. This is key to achieving the Obama administration's goal of reducing methane emissions from the oil and gas sector and its overall efforts to reduce greenhouse gas emissions by regulating the development and use of fossil fuels.
The DC Circuit has held that emissions limits imposed by the Environmental Protection Agency (EPA) on 13 states under its Cross-State Air Pollution Rule were unlawful. The EPA "overstepped its authority", the three-judge panel unanimously held, by requiring states to cut emissions more than necessary to ensure that other states meet air-quality standards.
Several activists have petitioned the Environmental Protection Agency (EPA) Administrator to rescind its delegation of authority to Oklahoma to manage its wastewater disposal programme. According to the petition, the Oklahoma Corporation Commission is failing adequately to restrict the underground injection of oil and gas wastewater and to fine companies that inject wastewater, leading to continued low-level seismic activity.
New York's Department of Environmental Conservation has officially banned high-volume hydraulic fracturing after concluding that it poses risks to public health and the environment. The ban came after a more than six-year evaluation process during which time high-volume hydraulic fracturing was subject to a temporary moratorium.
The Supreme Court recently reversed a decision upholding the Environmental Protection Agency (EPA) Mercury and Air Toxics Standards Rule, which set emission standards for hazardous air pollutants from power plants. The court held that the EPA had excluded the consideration of costs when evaluating whether the regulation of hazardous air pollutants from power plants is appropriate and necessary.
Environmental group Public Employees for Environmental Responsibility has filed a petition with the Environmental Protection Agency (EPA) Environmental Appeals Board, challenging five federal national pollutant discharge elimination system permits allowing three oil and gas companies to dispose of wastewater in surface streams. The permits were issued by the EPA for hydraulically fractured drilling operations in Wyoming.
During 2014 the Environmental Protection Agency issued a number of important policy decisions and new regulations, and the courts issued opinions in key environmental cases. This update summarises some of these actions, focusing on those that likely will have precedential impacts and may represent long-term trends affecting the environment and regulated entities during 2015 and beyond.
The White House has announced broad plans to reduce methane emissions over the next decade by 40% to 45% from 2012 levels. The plan will involve new regulations by a number of federal agencies – for example, the Environmental Protection Agency will issue new source performance standards under Section 111 of the Clean Air Act for new and modified wells.
A Madison County judge denied an injunction in the first lawsuit to challenge Illinois fracking rules, finding that the plaintiffs failed to demonstrate that they were in immediate danger. Two environmental groups filed suit in Franklin County Court, challenging approvals by the Ohio Department of Natural Resources for approximately 20 waste-disposal facilities handling wastewater from hydraulic fracturing operations.
Over 100 environmental groups have signed a petition to the Environmental Protection Agency and the Department of the Interior seeking rulemaking that would address emissions of air pollutants from hydraulic fracturing operations. The petition alleges that hydraulic fracturing emits hazardous air pollutants which are threatening the health of those living near drilling operations.
The Environmental Protection Agency has provided details on its ongoing study of the potential impacts of hydraulic fracturing on drinking water resources. The study will be consistent with the administration's support for unconventional oil and gas extraction within the context of its climate programme and will focus on best management practices.
A recent Supreme Court decision substantially restricts the authority of the US Environmental Protection Agency to regulate greenhouse gas emissions from stationary sources under the Clean Air Act's Prevention of Significant Deterioration (PSD) and Title V permitting programmes. Emissions may be regulated under these programmes only if a facility is otherwise subject to permitting based on emissions of other air pollutants.
On March 11, Environmental Protection Agency sent a draft advanced notice of proposed rulemaking to the Office of Management and Budget for regulatory review. The notice relates to reporting on the health and safety of chemicals used in hydraulic fracturing fluid under Sections 8(a) and 8(d) of the Toxic Substances Control Act.
The Environmental Protection Agency recently released a revised proposed rule regulating carbon dioxide emissions from electric generating units under the Clean Air Act's New Source Performance Standard. While the revised proposal includes a number of significant changes from the earlier proposal, it maintains strict emissions limits for coal-fired electric generating units that will require carbon capture and storage for any new facility.
There has been more controversy surrounding the Energy Savings and Industrial Competitiveness Act of 2013, which would impose a variety of new energy efficiency standards. Further, the Energy and Commerce Committee recently released its third Renewable Fuel Standard Assessment White Paper, focused on greenhouse gas emissions and other environmental impacts.
Continuing a message from his January 2013 inaugural speech, President Obama devoted a portion of his State of the Union address to climate change. He surprised many with his request that Congress enact "market-based" climate change legislation. In addition, Environment and Public Works Committee Chair Barbara Boxer recently held a public briefing focused on the science surrounding climate change.
The Environmental Protection Agency (EPA) recently focused on finalising various priorities. As well as releasing a progress report on its study regarding the environmental safety of hydraulic fracturing, the EPA issued its long-awaited boiler maximum achievable control technology rule and final amendments to the 2010 cement manufacturing clean air standards.
Two Republican bicameral lawmakers have indicated that they will introduce and advance a concurrent resolution that would express the sense of Congress that a carbon tax is not in the best interest of the United States. While non-binding, such a vote could publicly gauge the support for a carbon tax.
Although the US Department of Energy has conditionally approved Freeport LNG Expansion's application to export liquefied natural gas to countries without a free trade agreement, it remains uncertain when further approvals will be forthcoming. Freeport is the second project that the department has approved after it imposed a two-year moratorium on reviewing applications.